Rep. Thomas M. Bennett
Filed: 3/23/2021
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1 | AMENDMENT TO HOUSE BILL 166
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2 | AMENDMENT NO. ______. Amend House Bill 166 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 1. Short title. This Act may be cited as the | ||||||
5 | Carbon Dioxide Geologic Storage Act. | ||||||
6 | Section 5. Statement of policy. It is in the public | ||||||
7 | interest to promote the geologic storage of carbon dioxide. | ||||||
8 | Doing so will help ensure the viability of State industries | ||||||
9 | and will promote economic development in this State. | ||||||
10 | To be practical and effective, geologic storage of carbon | ||||||
11 | dioxide requires cooperative use of surface and subsurface | ||||||
12 | property interests often across large areas. It is therefore | ||||||
13 | in the public interest to employ procedures that promote, in a | ||||||
14 | manner fair to all interests, the use of all pore space in a | ||||||
15 | clearly defined reservoir to ensure comprehensive management | ||||||
16 | of the reservoir and the efficient use of natural resources. |
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1 | It is important that rules governing the use and development | ||||||
2 | of subsurface pore space be consistent with both established | ||||||
3 | precedents and subsurface private property rights.
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4 | Section 10. Definitions. As used in this Act:
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5 | "Area of review" means the area of review as required to be | ||||||
6 | delineated in the storage operator's federal Underground | ||||||
7 | Injection Control (UIC) program Class VI permit. | ||||||
8 | "Carbon dioxide injection well" means a well that is used | ||||||
9 | to inject carbon dioxide into a reservoir for geologic | ||||||
10 | storage. | ||||||
11 | "Carbon dioxide plume" means the extent underground, in 3 | ||||||
12 | dimensions, of an injected carbon dioxide stream. | ||||||
13 | "Department" means the Department of Natural Resources.
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14 | "Geologic storage" means the underground storage of carbon | ||||||
15 | dioxide in a reservoir.
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16 | "Mineral owner" means, as identified in the records of the | ||||||
17 | recorder of deeds for each county containing some portion of | ||||||
18 | the proposed reservoir, any owner of a whole or fractional | ||||||
19 | interest in any or all minerals in real property above, below, | ||||||
20 | or within the proposed reservoir that has been severed from | ||||||
21 | the surface estate by grant, exception, reservation, lease, or | ||||||
22 | other means.
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23 | "Pore space" means subsurface cavities or voids that can | ||||||
24 | be used as storage space for carbon dioxide.
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25 | "Pore space owner" means the person, trust, corporation, |
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1 | or other entity who has title to the pore space.
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2 | "Storage facility" means the subsurface area consisting of | ||||||
3 | the extent of the modeled carbon dioxide plume, as required to | ||||||
4 | be delineated in the storage operator's federal UIC program | ||||||
5 | Class VI permit. | ||||||
6 | "Storage facility permit" means a permit issued by the | ||||||
7 | Department allowing a person to establish and operate a | ||||||
8 | storage facility. | ||||||
9 | "Storage operator" means a person holding or applying for | ||||||
10 | a storage facility permit under this Act and holding or | ||||||
11 | applying for a UIC permit for the injection of carbon dioxide.
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12 | "Surface owner" means, as identified in the records of the | ||||||
13 | recorder of deeds for each county containing any portion of | ||||||
14 | the proposed storage facility, any owner of a whole or | ||||||
15 | undivided fee simple interest or other freehold interest, | ||||||
16 | which may or may not include mineral rights, in the surface | ||||||
17 | above the proposed storage facility, but does not include an | ||||||
18 | owner of a right-of-way, easement, leasehold, or any other | ||||||
19 | lesser estate.
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20 | "UIC permit" means an Underground Injection Control permit | ||||||
21 | authorized under the federal Safe Drinking Water Act's | ||||||
22 | Underground Injection Control (UIC) Program that allows a | ||||||
23 | person to operate a carbon dioxide injection well. | ||||||
24 | Section 15. Applicability. This Act applies only to carbon | ||||||
25 | dioxide injections that commence on or after January 1, 2021. |
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1 | Section 20. Storage facility permit.
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2 | (a) A storage operator may not operate a storage facility | ||||||
3 | in this State without a valid storage facility permit issued | ||||||
4 | by the Department. A storage facility permit may be | ||||||
5 | transferred or assigned from one storage operator to another. | ||||||
6 | Each permit is valid for 5 years after issuance. | ||||||
7 | (b) The Department shall issue or renew a storage facility | ||||||
8 | permit if the storage operator has paid the first year's | ||||||
9 | annual fee required by subsection (c) and has met the | ||||||
10 | requirements of Section 30. In addition, the Department shall | ||||||
11 | issue a storage facility permit following the public hearing | ||||||
12 | described in subsection (f) upon its determination that: | ||||||
13 | (1) the storage facility permit is in the public | ||||||
14 | interest; and | ||||||
15 | (2) to the extent the storage facility contains | ||||||
16 | commercially valuable minerals, the interests of the | ||||||
17 | mineral lessee or owner will not be adversely affected or | ||||||
18 | have been addressed in an arrangement between the interest | ||||||
19 | holder and the storage operator. | ||||||
20 | (c) The storage operator shall provide the Department an | ||||||
21 | estimate of the amount of carbon dioxide to be injected into a | ||||||
22 | storage facility for the period of the permit at the time of | ||||||
23 | application for a storage facility permit. On an annual basis, | ||||||
24 | a storage operator shall pay to the Department a fee of $0.08 | ||||||
25 | per ton of carbon dioxide estimated to be injected into a |
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1 | storage facility. Each year the storage operator shall | ||||||
2 | reconcile the past year's payment with the volume of carbon | ||||||
3 | dioxide injected into a storage facility the previous year. | ||||||
4 | The storage operator shall submit payment for the amount | ||||||
5 | injected above the storage operator's estimate for the | ||||||
6 | previous year. If the amount of carbon dioxide injected into a | ||||||
7 | storage facility is less than the amount estimated, the | ||||||
8 | Department shall refund the storage operator any overpayment. | ||||||
9 | (d) The Department may require a storage operator to make | ||||||
10 | records available to the Department relating to the amount of | ||||||
11 | carbon dioxide injected into a storage facility to ensure | ||||||
12 | compliance with the fee requirements of subsection (c). | ||||||
13 | (e) The fees collected in subsection (c) shall be | ||||||
14 | deposited into the Illinois Geologic Sequestration Special | ||||||
15 | Fund. | ||||||
16 | (f) Prior to issuing a storage facility permit, the | ||||||
17 | Department shall hold a public hearing. At least 30 days prior | ||||||
18 | to the hearing, notice of the hearing shall first be published | ||||||
19 | in the official newspaper of the county or counties where the | ||||||
20 | area of review is proposed to be located and in other print or | ||||||
21 | online publications as required by the Department, consistent | ||||||
22 | with the requirements of the Notice By Publication Act. Notice | ||||||
23 | shall be published daily for 2 consecutive weeks. At least 30 | ||||||
24 | days prior to the hearing, notice of the hearing must be given | ||||||
25 | to: | ||||||
26 | (1) each surface owner of land overlying the storage |
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1 | facility and within one-half mile of the storage | ||||||
2 | facility's boundaries; | ||||||
3 | (2) each mineral lessee or mineral owner with property | ||||||
4 | interests within one-half mile of the storage facility's | ||||||
5 | boundaries; and | ||||||
6 | (3) any pore space owners within the storage facility | ||||||
7 | and within one-half mile of the storage facility's | ||||||
8 | boundaries. | ||||||
9 | Any objections to the issuance of the storage facility's | ||||||
10 | permit not raised at the public hearing shall be waived. | ||||||
11 | Section 25. Ownership and conveyance of pore space.
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12 | (a) For real property that was divided into a surface | ||||||
13 | estate and a mineral estate before the effective date of this | ||||||
14 | Act, nothing in this Section shall alter, amend, diminish, or | ||||||
15 | invalidate rights to the use of pore space that were | ||||||
16 | explicitly acquired by conveyance document. Any such rights to | ||||||
17 | the use of pore space that were not explicitly acquired remain | ||||||
18 | vested in the surface estate. | ||||||
19 | (b) For real property that is divided into a surface | ||||||
20 | estate and a mineral estate on or after the effective date of | ||||||
21 | this Act, rights to the use of pore space shall remain vested | ||||||
22 | in the surface estate unless such rights are explicitly | ||||||
23 | conveyed. | ||||||
24 | (c) Grants of an easement to use or a lease of pore space | ||||||
25 | for geologic storage shall be in perpetuity if so specified, |
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1 | except to the extent the grantee relinquishes the easement or | ||||||
2 | lease because the pore space was not utilized for geologic | ||||||
3 | storage purposes. | ||||||
4 | (d) Any conveyance of rights pertaining to pore space | ||||||
5 | shall not confer any right to enter upon or otherwise use the | ||||||
6 | surface of the land unless the conveyance document expressly | ||||||
7 | so provides. | ||||||
8 | Section 30. Ownership requirements.
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9 | (a) No storage facility permit shall be issued unless the | ||||||
10 | storage operator owns, or has obtained grants of easements or | ||||||
11 | leaseholds for, all of the pore space in a storage facility. | ||||||
12 | (b) If a storage operator owns, or has obtained grants of | ||||||
13 | easement or leaseholds for, more than 50% but less than 100% of | ||||||
14 | the areal extent of pore space within a proposed storage | ||||||
15 | facility, the storage operator may apply to the Department to | ||||||
16 | amalgamate the remaining property interests. | ||||||
17 | Section 35. Amalgamating property interests.
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18 | (a) If a storage operator has applied to the Department to | ||||||
19 | amalgamate any remaining property interests in a storage | ||||||
20 | facility, the Department shall: | ||||||
21 | (1) notify any and all nonconsenting property owners | ||||||
22 | who own property interests to be amalgamated; | ||||||
23 | (2) within 120 days, but no less than 60 days after the | ||||||
24 | filing of the application, the Department shall conduct a |
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1 | hearing to determine the fair market value of each | ||||||
2 | property owner's pore space to be amalgamated. The storage | ||||||
3 | operator and each property owner has the right to present | ||||||
4 | evidence as to the value of the pore space, including, but | ||||||
5 | not limited to, the economic benefits to the storage | ||||||
6 | operator, and to be represented by an attorney; and | ||||||
7 | (3) after the hearing, issue an order determining the | ||||||
8 | fair market value of each nonconsenting owner's pore | ||||||
9 | space. | ||||||
10 | (b) Upon payment by the storage operator to the Department | ||||||
11 | of the total fair market value of the pore space to be | ||||||
12 | amalgamated, the storage operator shall be granted a permanent | ||||||
13 | easement by the Department upon the pore space. The Department | ||||||
14 | shall record the easement with the appropriate county recorder | ||||||
15 | of deeds. The Department shall remit funds received from the | ||||||
16 | storage operator to each property owner consistent with the | ||||||
17 | Department's determination of fair market value. | ||||||
18 | (c) Any easement granted under this Section shall not | ||||||
19 | include the right to use the surface above a nonconsenting | ||||||
20 | property owner's pore space. | ||||||
21 | (d) The Department has the authority to grant a permanent | ||||||
22 | easement to State-owned pore space to a storage facility. | ||||||
23 | Section 40. Mineral interests.
With the written consent of | ||||||
24 | the storage operator, a mineral owner may drill through or | ||||||
25 | near a storage facility to explore for or extract minerals if |
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1 | the drilling, extraction, and related activities are conducted | ||||||
2 | in cooperation with the storage operator and in compliance | ||||||
3 | with: | ||||||
4 | (1) Department requirements that preserve the storage | ||||||
5 | facility's integrity; and | ||||||
6 | (2) all requirements of the storage operator's UIC permit.
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7 | Section 45. Title to carbon dioxide prior to certificate | ||||||
8 | of completion.
Absent conveyance documents to the contrary, | ||||||
9 | the storage operator has title to the carbon dioxide injected | ||||||
10 | into and stored in a storage facility and holds title until the | ||||||
11 | Department issues a certificate of completion. | ||||||
12 | Section 50. Scope and remedy for claims of subsurface | ||||||
13 | trespass. | ||||||
14 | (a) A claim of subsurface trespass shall not be actionable | ||||||
15 | against a storage operator conducting geologic storage in | ||||||
16 | accordance with a valid UIC permit and storage facility permit | ||||||
17 | unless the injection or migration of carbon dioxide materially | ||||||
18 | impairs interests outside the storage facility. | ||||||
19 | (b) A surface or subsurface property interest holder shall | ||||||
20 | be permitted to recover money damages only for loss of a | ||||||
21 | nonspeculative value resulting from the injection and | ||||||
22 | migration of carbon dioxide beyond the storage facility. | ||||||
23 | (c) Punitive damages shall be barred if the storage | ||||||
24 | operator acts in all material respects in compliance with the |
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1 | operational and monitoring requirements of the UIC permit. | ||||||
2 | Section 55. Project completion and title transfer.
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3 | (a) After carbon dioxide injections at a storage facility | ||||||
4 | permanently cease, the storage operator may apply for a | ||||||
5 | certificate of completion. Before issuing a certificate of | ||||||
6 | completion, the Department, in consultation with the issuer of | ||||||
7 | the UIC permit, shall find that:
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8 | (1) the storage operator is in full compliance with | ||||||
9 | all laws governing the storage facility, including any | ||||||
10 | ongoing UIC permit requirements;
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11 | (2) the storage operator addressed all pending claims, | ||||||
12 | if any, regarding escape, release, leakage, or any similar | ||||||
13 | migration of carbon dioxide outside the storage facility; | ||||||
14 | (3) all carbon dioxide injection wells are plugged, | ||||||
15 | associated equipment and facilities are removed, and | ||||||
16 | reclamation work is completed as required by the UIC | ||||||
17 | permit issuer or the Department; | ||||||
18 | (4) the carbon dioxide in the reservoir is stable, | ||||||
19 | which means that it is essentially stationary or, if it is | ||||||
20 | migrating or may migrate, any migration will be unlikely | ||||||
21 | to be outside of the storage facility, or to the extent | ||||||
22 | beyond the area of review, the plume does not pose a risk | ||||||
23 | of endangerment to underground sources of drinking water, | ||||||
24 | consistent with Class VI permit requirements; and | ||||||
25 | (5) all monitoring wells, equipment, and facilities to |
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1 | be used in the post-closure period are in good condition | ||||||
2 | and retain mechanical integrity. | ||||||
3 | (b) If the Department does not complete the review of a | ||||||
4 | certificate of completion application within 90 days after | ||||||
5 | receipt, including the public notice and input deemed | ||||||
6 | appropriate by the Department, then the certificate of | ||||||
7 | completion shall be deemed issued at the end of the 90-day | ||||||
8 | period. If the Department does not find that the requirements | ||||||
9 | in subsection (a) are met, then it may decline the application | ||||||
10 | or require amendment to the application before granting the | ||||||
11 | certificate of completion. If the Department requires | ||||||
12 | amendment to the application, then the storage operator shall | ||||||
13 | have 30 days to submit an amended application. Upon receipt of | ||||||
14 | the amended application, the Department shall have 30 days to | ||||||
15 | either grant or decline to grant the certificate of completion | ||||||
16 | or the certificate of completion. The Department's failure to | ||||||
17 | timely issue a certificate of completion or denial of a | ||||||
18 | certificate of completion shall be considered final agency | ||||||
19 | action reviewable in the county court in the jurisdiction in | ||||||
20 | which the storage facility is located. | ||||||
21 | (c) The Department may charge a fee to the storage | ||||||
22 | operator for reviewing the certificate of completion | ||||||
23 | application. The fee shall be in the amount set by Department | ||||||
24 | rule. The amount shall be based on the Department's | ||||||
25 | anticipated expenses that it shall incur in reviewing the | ||||||
26 | certificate of completion application and shall not exceed |
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1 | $10,000.
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2 | (d) Once a certificate of completion is issued, the | ||||||
3 | following occurs:
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4 | (1) Title to the storage facility and to the stored | ||||||
5 | carbon dioxide transfers, without compensation, to the | ||||||
6 | State.
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7 | (2) Title acquired by the State includes all rights | ||||||
8 | and interests in, and all responsibilities, including | ||||||
9 | regulatory requirements associated with, the stored carbon | ||||||
10 | dioxide, so long as the State and the storage operator may | ||||||
11 | contractually agree that the storage operator shall | ||||||
12 | continue to comply with regulatory requirements associated | ||||||
13 | with the storage facility on the State's behalf. | ||||||
14 | (3) The storage operator and, to the extent the owner | ||||||
15 | is a separate entity from the storage operator, the owner | ||||||
16 | of the geologic storage site, including the owner of any | ||||||
17 | surface and subsurface infrastructure associated with the | ||||||
18 | storage facility, are released from and the State assumes | ||||||
19 | all regulatory requirements and liability associated with | ||||||
20 | the storage facility.
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21 | (4) Monitoring and managing the storage facility is | ||||||
22 | the State's responsibility to be overseen by the | ||||||
23 | Department unless and until the federal government assumes | ||||||
24 | responsibility for the long-term monitoring and management | ||||||
25 | of storage facilities.
Upon federal government assumption | ||||||
26 | of responsibility, funds in the Illinois Geologic |
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1 | Sequestration Special Fund shall be transferred to any | ||||||
2 | such parallel fund under federal law for purposes of | ||||||
3 | long-term monitoring and management of storage facilities. | ||||||
4 | To the extent such a fund does not exist, the State shall | ||||||
5 | refund the fees contributed by the storage operators to | ||||||
6 | each party. | ||||||
7 | (5) If the federal government has not assumed | ||||||
8 | responsibility for the long-term monitoring and management | ||||||
9 | of storage facilities, then the Illinois Geologic | ||||||
10 | Sequestration Special Fund shall be used for the purposes | ||||||
11 | of monitoring and managing the storage facilities and any | ||||||
12 | other responsibility associated with the stored carbon | ||||||
13 | dioxide.
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14 | Section 60. Enhanced recovery projects.
This Act does not | ||||||
15 | apply to applications filed with the Department proposing to | ||||||
16 | use carbon dioxide for an enhanced oil or gas recovery | ||||||
17 | project. Such applications shall be processed pursuant the | ||||||
18 | Illinois Oil and Gas Act.
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19 | Section 65. Department powers; home rule. The Department | ||||||
20 | may adopt rules and issue orders to enforce this Act. The | ||||||
21 | Department may authorize its employees, qualified by training | ||||||
22 | and experience, to perform the powers and duties set forth in | ||||||
23 | this Act. No agency of State government or political | ||||||
24 | subdivision of the State may regulate geologic storage except |
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1 | as expressly authorized under this Act; so long as nothing in | ||||||
2 | this Section 65 restricts or interferes with the Illinois | ||||||
3 | Environmental Protection Agency's authority to: | ||||||
4 | (1) issue any necessary permits for operation of | ||||||
5 | aboveground facilities associated with the geologic storage | ||||||
6 | project; or | ||||||
7 | (2) issue permits under the UIC program and inspect | ||||||
8 | geologic storage sites pursuant to Section 13.7 of the | ||||||
9 | Environmental Protection Act. To the extent there is any | ||||||
10 | inconsistency between this Act and Section 13.7 of the | ||||||
11 | Environmental Protection Act, this Act shall control. | ||||||
12 | This Section is a limitation under subsection (i) of | ||||||
13 | Section 6 of Article VII of the Illinois Constitution on the | ||||||
14 | concurrent exercise by home rule units of powers and functions | ||||||
15 | exercised by the State. | ||||||
16 | Section 70. Restraint of trade. None of the rights and | ||||||
17 | responsibilities pursuant to this Act shall be held or | ||||||
18 | construed to violate any of the statutes of this State | ||||||
19 | relating to trusts, monopolies, or contracts and combinations | ||||||
20 | in the restraint of trade.
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21 | Section 75. Illinois Geologic Sequestration Special Fund. | ||||||
22 | The Illinois Geologic Sequestration Special Fund is created as | ||||||
23 | a special fund in the State treasury. The Fund shall consist of | ||||||
24 | any money deposited into the Fund as provided in subsection |
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1 | (e) of Section 20. Money in the Fund shall be used for the | ||||||
2 | administration of this Act and for no other purpose. All | ||||||
3 | interest earned on money in the Fund shall be deposited into | ||||||
4 | the Fund. | ||||||
5 | Section 97. Severability. The provisions of this Act are | ||||||
6 | severable under Section 1.31 of the Statute on Statutes. | ||||||
7 | Section 905. The State Finance Act is amended by adding | ||||||
8 | Section 5.935 as follows: | ||||||
9 | (30 ILCS 105/5.935 new) | ||||||
10 | Sec. 5.935. The Illinois Geologic Sequestration Special | ||||||
11 | Fund. ".
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